With police, recording interactions becoming a necessity

A sign on the wall Wednesday, May 11, 2016 at Waynesboro Police Department identifies the interview room. Each local department has similar ways to recording interviews to be used as evidence.(Photo: Markell DeLoatch, Public Opinion)Buy Photo

FRANKLIN COUNTY - In the past, law enforcement officials weren't required to record interviews with suspects - a practice at least one expert says left police - and court cases- vulnerable, since defense attorneys could then challenge an officer's memory of conversations from months or more than a year prior.

It wasn't just Franklin County where this occurs. Experts say law enforcement agencies throughout Pennsylvania aren't required to record interviews they have with suspects.

But now Franklin County is one of the few in the state to update their protocols by requiring interviews to be recorded - just one of a few key changes on the horizon when it comes to law enforcement recording their interactions.

Franklin County District Attorney Matt Fogal, along with Duquense University Associate Law Professor John Rago, have worked to set new protocols for the county to improve photo lineups of suspects and make recording police interviews between suspects and police a requirement.

In the future, Fogal would also like to see law enforcement officials wearing body cameras.

The first two are already enacted around the county. Fogal said body cameras likely would be once changes are made to current laws regarding the use of camera footage.

"For years, I've been working in the area of matters that we refer to as 'conviction integrity issues,' and the focus is to try to help law enforcement minimize the risk of error and to create policies and practices," said Rago, who wrote a 2011 report from The Advisory Committee on Wrongful Convictions that was presented to the PA General Assembly. "We committed ourselves to trying evidence based practices that could help us in our pursuits."

For Rago, it was about looking at wrongful convictions, and finding that while there was rarely ill-intent behind them, the traditional ways of gathering certain types of evidence were no longer the best. And that meant neither victims or defendants were truly benefiting from the system.

While many expect law enforcement to record everything that happens in their precinct, or even all encounters with the public, that is not the case. The Pennsylvania's Wiretap Act makes it a violation for a police officer to record someone who does not agree to have their interview recorded, Rago said.

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Officer Mark Taylor enters the interview room Wednesday, May 11, 2016 at Waynesboro Police Department. Each local department has similar ways to recording interviews to be used as evidence.(Photo: Markell DeLoatch, Public Opinion)

Locally, Fogal said, recorded police interviews were not mandatory until this year. That fact was highlighted in a recent child sex abuse case in which suspect Kenneth Bowling did an interview with Greencastle Police.

In court, the prosecution argued that - according to police - Bowling had admitted to vital allegations over what he knew and actions he had taken, but his attorney attacked those statements by questioning why the interview wasn't recorded.

It was a rare situation, but was something that was more likely to happen with the smaller departments until recently.

"A lot of them still (record interviews) anyway, just for obvious reasons," Fogal said. "Some particular departments have been set up with their own interview room, that has camera and recording equipment designed in the actual infrastructure in the room. Some it's as simple as something you can buy at Staples and set up on a tripod when you're talking to someone."

Fogal said that the full recorded room set-up is not a protocol of the new initiative.

"In a perfect world, with unlimited resources, that'd be great," Fogal said. "But really, like I said, you just need a camera and you can really do it anywhere."

He added recorded interviews seem like common sense, for several reasons.

"The point is so for me, selfishly, it's evidence I could present a jury," Fogal said. "And a defendant could take the stand, looking much differently than they did that night, acting much differently than whenever (their interview) occurred, then saying 'well I never said that...'

"It's very important for me just to be able to have evidence, and then, from the community perspective, for someone to say 'this is what happened, this is what the police did or said,' well let's go to the video tape. Because what you're saying is not true and we're recording it."

Rago said similarly, it provides a jury with the "best confession evidence" should these cases go to trial.

"If you have a confession, that is taken while somebody is in custody, and it's not recorded, visually and audio, without reason for it - I think juries are going to be reasonably suspicious," Rago said.

Fogal believes Franklin County so far has consistently had faith in police, but he understands that is not enough anymore.

"Everyone has cable TV and there's been a lot of stories in the news," Fogal said, referencing several nationally controversial cases involving officer-involved shootings. "So we don't want that confidence in our system here to erode based upon outside influence."

A defense attorney could easily question the lack of an interview recording, Rago said.

"'Why didn't you tape this confession?' What good answer (do investigators have,) unless the person says the defendant chose not to be recorded. But what if the defendant says 'I didn't do that?'" Rago said, adding that similar questions could come from the lack of use of any best practices. "You're just laying yourself wide open for attack."

In recent years, Franklin County jurors have received a questionnaire to fill out about their experiences on the jury panel. One of the questions is if they are more or less likely to believe a police officer's testimony, and Fogal said they have consistently said they are more likely to believe an officer.

"This one is more related to best practices, best science, and therefore showing the public, look, we're not just standing pat," Fogal said. "When we see something and there's probably a better way to do it - not that the way we've historically done it is awful, just that this is better - then we're going to look to implement that as practitioners."

Beyond the interview room - police to record all interactions with the public

With each new case of possible police misconduct that hits the media, the idea of body cameras worn by police becomes more prevalent.

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Officer Mark Taylor enters the interview room Wednesday, May 11, 2016 at Waynesboro Police Department. Each local department has similar ways to recording interviews to be used as evidence.(Photo: Markell DeLoatch, Public Opinion)

"There's really no philosophical objection to them in law enforcement here," Fogal said. "However, logistically, and legally, we have encountered issues."

Currently, due to the Wire Tap Act, officers would have to turn off their body cams before entering a person's home.

"Given the dangers police officers face, and how kinetic and quick things happen, we don't want them to have to go into a home in an emergency and have to remember to turn off the camera," Fogal said. "That split second could cost them their life or someone else's."

Along with that is considering the Right To Know laws, which makes departments consider how the videos are stored, how long they're kept, which ones are kept, what is public, and who is responsible for tracking all of it.

Franklin County Sheriff Jim Brown said for a department his size, it would almost take a full-time position "just for the maintenance, storage and dissemination of that."

But for the most part, local law enforcement see the benefits that outweigh the complications.

Fogal specifically cited an out-of-state case in which an officer said he shot an unarmed man because he was under attack, but the body cam footage showed a different situation.

"It's scary to think that he even had his body camera on that showed something different than that," Fogal said, about the officer's statements.

Body cams still do not necessarily show the ultimate truth, and can even omit important information, as Brown explained.

"It's not the be all, end all. People now challenge law enforcement, and they have the right too, but a body cam isn't the answer to everything," Brown said. "By in large, I have no qualms with being recorded because everything I do is legitimate and my whole moral, legal, ethical stance. My concern is, sometimes the camera doesn't see everything the human eye sees, the camera doesn't hear, the camera doesn't smell, the camera doesn't have all the senses we do."

But when it comes to accountability, it becomes worth it, as Brown and Waynesboro Police Department Chief Jim Sourbier explained.

"We have become so enamored as a culture with instantaneous audio and video," Sourbier said, "that (citizens) expect that it's only common sense to be used in law enforcement as well."

For Brown, he wishes the officer's oath was enough for people to have faith in them, but understands times are changing.

"I'm old fashioned. I firmly believe when you sign your name on that complaint, whether it's an affidavit for a homicide or running a stop sign, it better be the truth." Brown said. "You're swearing to God it's the truth. And if it's not, you need to be fire, you need to be in a different line of work."

Sourbier said that while law enforcement authorities are the "good guys," they often have to prove that to the public. He wants to be able to review body-cam footage if accusations do come across, to whatever extent, and learn from them, but the law makes that a challenge.

"I want them to know how (they operate properly), but the law doesn't allow me."

So for local law enforcement, it's a step forward.

The initiative began after Fogal heard Rago speak at a conference, and eventually brought him to a meeting with the nine police chiefs in the county to help them understand why these protocols were important.

"I remember Matt (Fogal) opening up the meeting saying, 'Folks, we need to be doing these things,'" Rago said. "And it wasn't mean, it wasn't threatening. It was, you know, 'guys we gotta step it up. Because there's a better way to do things.' And I think from day one Matt was very attentive, he pushed back and asked questions, he didn't accept it all as one big pill."

And from there, Fogal presented his "Sheepdog Sustainment Initiative" the Criminal Justice Advisory Board, ready to make the change. His goal is to bring Franklin County law enforcement to a new level.

"Be able to look at those people who you're working for," Fogal told the board. "They're your employer. All of us, judges, DA's, commissioners, all of us. We're servants.

"Can we look them in the eye and say we did the best we could do? ... Are we? I hope so."

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Officer Mark Taylor is seeen on a computer screen in the interview room Wednesday, May 11, 2016 at Waynesboro Police Department. Each local department has similar ways to recording interviews to be used as evidence.(Photo: Markell DeLoatch, Public Opinion)